REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 525-526 OF 2012 (Arisin !

"# !$ SLP(Cr%.& N!s.'0(-'05 !$ 2012& Jai Prakash Singh Vs. The State of Bihar & Anr. Etc. Respondents Appellant

JUD)MENT Dr. B.S. CHAUHAN* J. 1. !. Lea e granted. These cri"inal appeals ha e #een preferred against the

$%dg"ents and orders dated 1&.&.!'11 and !(.1'.!'11 passed #) the *igh +o%rt of J%dicat%re at Patna in +rl. ,isc. -os.. !./1. and //(01 of !'112 #) 3hich the *igh +o%rt has enlarged the respondents Ra$esh 4%"ar Singh 5 Papp% Singh and San$a) 4%"ar Singh 5 ,int% Singh on anticipator) #ail %nder Section 0/. of +ode of +ri"inal Proced%re2 1&6/ 7hereinafter referred as 8+r.P.+.9:

/. A.

;acts and circ%"stances gi ing rise to these appeals are that < =n (.1.!'112 the appellant Jai Prakash Singh lodged an ;>R of

Laheria Sarai +ase -o. /'0 of !'11 %nder Sections /'!?/0 of >ndian Penal +ode2 1.1' 7hereinafter referred as 8>.P.+.9:2 alleging therein that the infor"ant?co"plainant and his elder #rother Shi Prakash Singh 3ere ha ing a "edicine shop for the last !@/ )ears. =n

(.1.!'11 aro%nd 1'.'' p.".2 his #rother closed the shop and proceeded to3ards his ho%se on his "otorc)cle. *e 3as chased #) the aforesaid respondents on a "otorc)cle and stopped. The) opened indiscri"inate firing and th%s2 he died on the spot. >n the ;>R2 it 3as also alleged that the said respondents had threatened the co"plainant to kill hi" and his #rother 1'@1( da)s ago as there had #een so"e old disp%te of acco%nts #et3een the parties. B. As per the post@"orte" report2 the deceased recei ed ( #%llet

in$%ries on his person and he died #eca%se of the sa"e. The said respondents had applied for anticipator) #ail2 ho3e er2 their applications stood re$ected #) the learned Sessions J%dge ide order dated 11...!'11 o#ser ing that in the in estigation2 a strong "oti e had #een fo%nd against the said respondents and there 3ere certain

affida its of e)e@3itnesses to the effect that the said respondents 3ere the assailants. +. Aggrie ed2 the said respondents filed ,iscellaneo%s +ri"inal

Petitions for grant of anticipator) #ail %nder Section 0/. +r.P.+. #efore the Patna *igh +o%rt. The said applications ha e #een allo3ed passing the i"p%gned orders granting the" anticipator) #ail on the gro%nds that the ;>R itself "ade it e ident that there 3as so"e pre io%s disp%te #et3een the parties 3hich led to a A%arrel and the acc%sed had fair antecedents. *ence2 these appeals. 0. Shri B i$endra 4%"ar Pande)2 learned co%nsel appearing for

the appellant2 has s%#"itted that the *igh +o%rt co""itted gra e error 3hile granting anticipator) #ail to the said respondents 3itho%t considering the gra it) of the offence and the "anner in 3hich the offence had #een co""itted and 3itho%t realising that the ;>R had #een lodged pro"ptl) 3ithin a period of t3o ho%rs of the incident and #oth the said acc%sed persons had #een na"ed therein. Th%s2 the i"p%gned $%dg"ents and orders are lia#le to #e set aside. (. =n the contrar)2 ,s. 4a ita Jha and ,s. Prerna Singh2

learned co%nsel appearing for the said respondents and the State of
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Bihar2 ha e opposed the appeals contending that the *igh +o%rt has i"posed er) serio%s conditions 3hile granting the anticipator) #ail. The order does not reA%ire an) interference at this stage. The appeals ha e no "erit and are lia#le to #e dis"issed. 1. Ce ha e considered the ri al s%#"issions "ade #) the learned

co%nsel appearing for the parties and per%sed the record. 6. The pro isions of Section 0/. +r.P.+. la) do3n g%idelines for

considering the anticipator) #ail application2 3hich read as %nder< D0/.. Birection for grant of #ail to person apprehending arrest.@71: Chere an) person has reason to #elie e that he "a) #e arrested on an acc%sation of ha ing co""itted a non@#aila#le offence2 he "a) appl) to the *igh +o%rt or the +o%rt of Session for a direction %nder this section that in the e ent of s%ch arrest2 he shall #e released on #ailE and that co%rt "a)2 after taking into consideration2 inter alia, the follo3ing factors2 na"el)<@ 7i: The nat%re and gra it) of the acc%sationE 7ii: The antecedents of the applicant incl%ding the fact as to 3hether he has pre io%sl) %ndergone i"prison"ent on con iction #) a co%rt in respect of an) cogniFa#le offenceE 7iii: the possi#ilit) of the applicant to flee fro" $%sticeE and 7i : 3here the acc%sation has #een "ade 3ith the o#$ect of in$%ring or h%"iliating the applicant #) ha ing hi" so arrested2 either re$ect the application forth3ith or iss%e an interi" order for the grant of anticipator) #ail.G

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>n ie3 of the a#o e2 it is "andator) on the part of the co%rt to

ens%re the co"pliance of the pre@reA%isite conditions for grant of anticipator) #ail incl%ding the nat%re and gra it) of the acc%sation. &. Ad"ittedl)2 the deceased had recei ed se eral g%n shot in$%ries.

According to the post@"orte" report2 the follo3ing in$%ries 3ere fo%nd on the person of the deceased< DA . A#rasions< 71: 1 1?0H I1?0H 1H@ right and enter post of forehead 7!: 1?0H I 1?0H 1?! HI 1?0H and 1?!H J 1?1'H in the lo3er 1?! of the left leg 7/: 1?0 H I l?0H right kneecap. B. ;ire Ar" in$%ries 71: entr) 3o%nd 1?0 dia 3ith in erted cont%sed "argins and a#rasions. +ollar placed on the o%ter aspect of the right ar" !H proIical to el#o3 @ passed throK ar"s #reaking the #one into pieces and lacerating the to co"e o%t throK eIit 3o%nd 1?/H I 1?&H 3ith e en in the "iddle and inner portion of ar". Another entr) 3o%nd2 1?(H in dia 3ith a#rasion collar2 in erted "argin and tattooing aro%nd 71@1?! H I 1@1?!H: 3as also present 1H distal to the pre enting entr) 3o%nd and co"e o%t thro%gh the sa"e eIit 3o%nd. 7!: Entr) 3o%nd @ 1?0 H dia 3ith in erted cont%sed "argin an a#rasion collar in right anterior aIillar) line (H #elo3 nipple @ right .th intercortal space@ right lo#e of li er "es entr)@ s"all intestine at one place @ ca"e o%t thro%gh eIit 3o%nd 1?/H in dia in lo3er left iliac fosa in the aIilar) line 3ith in erted "argin. 7/: Entr) 3o%nd 1?0H dia 3ith cont%sed in erted "argins and a#rasion collar placed in the left iliac fosa@ color at one place@ s"all intestine at one place@
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ca"e o%t this eIit 3o%ld LH I 1?!H on right a#do"inal flank 3ith e erted "argin2 in anterior oscillar) line &H #ello3 nipple. 70: Entr) 3o%ld 1?/H in dia 3ith cont%sed in erted "argin and a#rasion collar o er %pper and inner part of left and soft tiss%e of the ar" to ca"e o%t thro%gh the eIit 3o%nd 1?/H in dia 3ith e erted "argin on the #ack of left ar" /H a#o e 7proIi"al: el#o3. 7(: Entr) 3o%nd 1?0H in dia on the #ack of a#do"en 0H o%ter to "idline at T1! le el2 3ith in erted and cont%sed "argins and a#rasions collar "esentr) large intestine at one place eIit thro%gh a 3o%nd 1?0H dia 3ith in erted "argin in the hand. Along the tracks2 the. tiss%e 3ere lacerated. ;l%id #lood red clots 3ere seen inside a#do"inal ca it) a#o%t 1''' cc in ol%"e. =rgans appeared pale. Both sides of the heart 3ere partiall) f%ll and the %rinar) #ladder 3as fo%nd f%ll. Sto"ach contained a#o%t !' cc food 3itho%t alcoholic s"ell. Sk%ll and #rain sho3ed nothing partic%lar. =pinion Beath res%lted fro" he"orrhage and #oth d%e to fire ar" in$%ries "entioned a#o e.G 1'. The learned Sessions J%dge did not consider it proper to grant

anticipator) #ail2 rather re$ected the sa"e after considering the s%#"issions "ade on #ehalf of the said acc%sed persons o#ser ing that the co%rt had per%sed the +ase Biar)2 para &' of 3hich re ealed a er) strong "oti e. There 3as "aterial against the said acc%sed in the case diar). The deceased had recei ed "%ltiple a#rasions and ( g%n

shot in$%ries2 th%s2 it 3as not a fit case to enlarge the acc%sed on anticipator) #ail. 11. Ad"ittedl)2 the ;>R had #een lodged pro"ptl) 3ithin a period

of t3o ho%rs fro" the ti"e of incident at "idnight. Pro"ptness in filing the ;>R gi es certain ass%rance of eracit) of the ersion gi en #) the infor"ant?co"plainant. 1!. The ;>R in cri"inal case is a ital and al%a#le piece of

e idence tho%gh "a) not #e s%#stanti e piece of e idence. The o#$ect of insisting %pon pro"pt lodging of the ;>R in respect of the co""ission of an offence is to o#tain earl) infor"ation regarding the circ%"stances in 3hich the cri"e 3as co""itted2 the na"es of act%al c%lprits and the part pla)ed #) the" as 3ell as the na"es of e)e@ 3itnesses present at the scene of occ%rrence. >f there is a dela) in lodging the ;>R2 it looses the ad antage of spontaneit)2 danger creeps in of the introd%ction of colo%red ersion2 eIaggerated acco%nt or concocted stor) as a res%lt of large n%"#er of

cons%ltations?deli#erations. Mndo%#tedl)2 the pro"ptness in lodging the ;>R is an ass%rance regarding tr%th of the infor"ant9s ersion. A pro"ptl) lodged ;>R reflects the first hand acco%nt of 3hat has act%all) happened2 and 3ho 3as responsi#le for the offence in
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A%estion. 7Vide< T+"%i, -,%i .. T+/ S#,#/ !$ T,0i% N,1"* A>R 1&6/ S+ ('1E S#,#/ !$ P"n2,3 .. S"r2, R,0* A>R 1&&( S+ !01/E )iris+ 4,1,. 5 Ors. .. S#,#/ !$ M.P.* 71&&1: . S++ 1.1E and T,61ir S,0s"11in S+/i6+ .. S#,#/ !$ )"2,r,# 5 Anr.* A>R !'1! S+ /6:. 1/. There is no s%#stantial difference #et3een Sections 0/. and

0/& +r.P.+. so far as appreciation of the case as to 3hether or not a #ail is to #e granted2 is concerned. *o3e er2 neither anticipator) #ail nor reg%lar #ail can #e granted as a "atter of r%le. The anticipator) #ail #eing an eItraordinar) pri ilege sho%ld #e granted onl) in eIceptional cases. The $%dicial discretion conferred %pon the co%rt has to #e properl) eIercised after proper application of "ind to decide 3hether it is a fit case for grant of anticipator) #ail. 10. >n S#,#/ !$ M.P. 5 Anr. .. R,0 -is+n, B,%!#+i, 5 Anr. 2

A>R 1&&( S+ 11&.2 this +o%rt considered the nat%re of the right of anticipator) #ail and o#ser ed as %nder< We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. n the first place, there !as no pro"ision similar to Section 438 in the old Criminal Procedure Code#.. Also anticipator$ %ail cannot %e granted as a matter of right. t is essentiall$ a statutor$ right conferred long after the coming into force of the Constitution. t cannot %e considered as an essential ingredient of Article 21 of the
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Constitution. And its non&application to a certain special categor$ of offences cannot %e considered as "iolati"e of Article 21.' 1(. Chile deciding the aforesaid cases2 this +o%rt referred to the

01st Report of the >ndian La3 +o""ission dated !0th Septe"#er2 1&1& reco""ending the introd%ction of a pro ision for grant of anticipator) #ail 3herein it has #een o#ser ed that D7!8/r #! r,n# ,n#i9i7,#!r: 3,i% s+!"%1 3/ /;/r9is/1 in ./r: /;9/7#i!n,% 9,s/sG. 11. ,s. 4a ita Jha2 learned co%nsel appearing for the

acc%sed?respondents has ehe"entl) ad anced the arg%"ents on the concept of life and li#ert) enshrined in Article !1 of the +onstit%tion of >ndia placing a er) hea ) reliance on the

o#ser ations "ade #) this +o%rt in Si11+,r,0 S,#%in ,77, M+/#r/ .. S#,#/ !$ M,+,r,s+#r, ,n1 Ors.* A>R !'11 S+ /1!2 and s%#"itted that %nless the c%stodial interrogation is 3arranted in the facts and circ%"stances of the case2 not granting anticipator) #ail a"o%nts to denial of the rights conferred %pon a citiFen?person %nder Article !1 of the +onstit%tion. Ce are afraid the la3 as referred to hereina#o e does not s%pport the case as can assed #) learned co%nsel for the acc%sed@respondents. ,ore so2 the +onstit%tion Bench of
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this +o%rt in -,r#,r Sin + .. S#,#/ !$ P"n2,3* 71&&0: / S++ (1&2 3hile s%""ing %p the la3 in para /1.2 inter&alia, held as %nder< Section 2()*+ of the ,A-A Act e.cluding the application of Section 438 of the Code of Criminal Procedure in relation to an$ case under the Act and the /ules made thereunder, cannot %e said to ha"e depri"ed the personal li%ert$ of a person as enshrined in Article 21 of the Constitution.' 7See also< N,r9!#i9s C!n#r!% B"r/," .. Di%i7 Pr,+%,1 N,0,1/ 7!''0: / S++ 11&:. Therefore2 3e are not i"pressed #) the s%#"issions so ad anced #) learned co%nsel for the acc%sed@respondents. 16. This +o%rt in Si11+,r,0 S,#%in ,77, M+/#r/ 7s%pra: after considering the earlier $%dg"ents of this +o%rt laid do3n certain factors and para"eters to #e considered 3hile considering application for anticipator) #ail < 122. ,he follo!ing factors and parameters can %e ta0en into consideration !hile dealing !ith the anticipator$ %ail1 i. ,he nature and gra"it$ of the accusation and the e.act role of the accused must %e properl$ comprehended %efore arrest is made2 ii. ,he antecedents of the applicant including the fact as to !hether the accused has pre"iousl$ undergone imprisonment on con"iction %$ a Court in respect of an$ cogni3a%le offence2
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iii. ,he possi%ilit$ of the applicant to flee from 4ustice2 i". ,he possi%ilit$ of the accused5s li0elihood to repeat similar or the other offences. ". Where the accusations ha"e %een made onl$ !ith the o%4ect of in4uring or humiliating the applicant %$ arresting him or her. "i. mpact of grant of anticipator$ %ail particularl$ in cases of large magnitude affecting a "er$ large num%er of people. "ii. ,he courts must e"aluate the entire a"aila%le material against the accused "er$ carefull$. ,he court must also clearl$ comprehend the e.act role of the accused in the case. ,he cases in !hich accused is implicated !ith the help of sections 34 and 146 of the ndian Penal Code, the court should consider !ith e"en greater care and caution %ecause o"er&implication in the cases is a matter of common 0no!ledge and concern2 "iii. While considering the pra$er for grant of anticipator$ %ail, a %alance has to %e struc0 %et!een t!o factors namel$, no pre4udice should %e caused to the free, fair and full in"estigation and there should %e pre"ention of harassment, humiliation and un4ustified detention of the accused2 i.. ,he court to consider reasona%le apprehension of tampering of the !itness or apprehension of threat to the complainant2 .. 7ri"olit$ in prosecution should al!a$s %e considered and it is onl$ the element of genuineness that shall ha"e to %e considered in the matter of grant of %ail and in the e"ent of there %eing some dou%t as to the genuineness of the prosecution, in the normal course of e"ents, the accused is entitled to an order of %ail. 123. ,he arrest should %e the last option and it should %e restricted to those e.ceptional cases !here arresting the accused is imperati"e in the facts and circumstances of that case.
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124. ,he court must carefull$ e.amine the entire a"aila%le record and particularl$ the allegations !hich ha"e %een directl$ attri%uted to the accused and these allegations are corro%orated %$ other material and circumstances on record.' 1.. Para"eters for grant of anticipator) #ail in a serio%s offence

are reA%ired to #e satisfied and f%rther 3hile granting s%ch relief2 the co%rt "%st record the reasons therefore. Anticipator) #ail can #e granted onl) in eIceptional circ%"stances 3here the co%rt is pri"a facie of the ie3 that the applicant has falsel) #een enroped in the cri"e and 3o%ld not "is%se his li#ert). 7See< D.-. ),n/s+ B,3" .. P.T. M,n!6,r,n 5 Ors.* 7!''6: 0 S++ 0/0E S#,#/ !$ M,+,r,s+#r, 5 Anr. .. M!+1. S,2i1 H"s,in M!+1. S. H"s,in 5 Ors.* 7!''.: 1 S++ !1/E and Uni!n !$ In1i, .. P,1,0 N,r,in A ,r8,% 5 Ors.* 7!''.: 1/ S++ /'(:. 1&. The case at hand2 if considered in the light of aforesaid settled

legal proposition2 3e reach an inescapa#le concl%sion that the *igh +o%rt did not appl) an) of the aforesaid para"eters2 rather dealt 3ith a er) serio%s "atter in a "ost cas%al and ca alier "anner and sho3ed %ndeser ing and %n3arranted s)"path) to3ards the acc%sed.

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The *igh +o%rt erred in not considering the case in correct

perspecti e and allo3ed the said applications on the gro%nds that in the ;>R so"e old disp%tes had #een referred to and the acc%sed had fair antecedents. The rele ant part of the *igh +o%rt $%dg"ent

i"p%gned #efore %s reads as %nder< D+onsidering that the onl) allegation in the ;irst >nfor"ation Report is that there 3as pre io%sl) so"e disp%te #et3een the deceased and the petitioner and the) had A%arrelled on acco%nt of the sa"e2 let the petitioner a#o e na"ed2 3ho has fair antecedents2 #e released on anticipator) #ail..G !1. >n the facts and circ%"stances of this case2 3e are of the

considered opinion that it 3as not a fit case for grant of anticipator) #ail. The *igh +o%rt o%ght to ha e eIercised its eItraordinar)

$%risdiction follo3ing the para"eters laid do3n #) this +o%rt in a#o e referred to $%dicial prono%nce"ents2 considering the nat%re and gra it) of the offence and as the ;>R had #een lodged spontaneo%sl)2 its eracit) is relia#le. The *igh +o%rt has er) lightl) #r%shed aside the fact that ;>R had #een lodged spontaneo%sl) and f%rther did not record an) reason as ho3 the pre@reA%isite conditions incorporated in the stat%tor) pro ision itself stood f%lfilled. -or did the co%rt consider as to 3hether c%stodial interrogation 3as reA%ired.

The co%rt "a) not eIercise its discretion in derogation of esta#lished principles of la32 rather it has to #e in strict adherence to the". Biscretion has to #e g%ided #) la3E d%l) go erned #) r%le and cannot #e ar#itrar)2 fancif%l or ag%e. The co%rt "%st not )ield to spas"odic senti"ent to %nreg%lated #ene olence. The order dehors the gro%nds pro ided in Section 0/. +r.P.+. itself s%ffers fro" non@ application of "ind and therefore2 cannot #e s%stained in the e)es of la3. !!. The i"p%gned $%dg"ents and orders dated 1&.&.!'11 and

!(.1'.!'11 passed #) the *igh +o%rt of J%dicat%re at Patna in +rl. ,isc. -os.!./1. and //(01 of !'11 are2 th%s2 set aside. The

anticipator) #ail granted to the said respondents is cancelled. -eedless to sa) that in case the said respondents appl) for reg%lar #ail2 the sa"e 3o%ld #e considered in accordance 3ith la3. Cith the aforesaid o#ser ations2 appeals stand disposed of.

.................========..J. (Dr. B.S. CHAUHAN& ................========..J. (JA)DISH SIN)H -HEHAR&

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N/8 D/%+i* M,r9+ 1(* 2012