The Supreme Court bench comprising Justices DY Chandrachud and BV Nagarathna has observed that anticipatory bail granted ignoring material aspects including the nature and gravity of the offence is liable to be set aside. The instant appeals arise from the judgement of the single bench of Madhya Pradesh which allowed the applications for anticipatory bail filed by the second respondents in both the appeals under Section 438 of the Code of Criminal Procedure 1973.
Factual background of the case were: the appellant was at Negai Tiraha with the deceased, Vikas Singh (who was his brother in-law) and two other individuals (Rajkishore Rajput and Dharmender Patel). The four accused persons, namely Ujiyar Singh, his two sons Chandrabhan Singh and Suryabhan Singh (the second respondent in the companion appeal) and his driver Jogendra Singh (the second respondent in the lead appeal) arrived in a jeep. Thereafter due to a previous rivalry, Ujiyar Singh and Chandrabhan Singh shot at Vikas Singh, while Jogendra Singh held him, leading to his death while Suryabhan Singh hit the appellant on his head with the butt of his gun, leading to an injury. Upon being brought to a hospital, Vikas Singh was pronounced dead, following which the appellant got the FIR registered. In relation to this same incident, Ujiyar Singh also got a cross-FIR registered against the deceased and the appellant. Apprehending his arrest, Jogendra Singh had filed an application for anticipatory bail in the crime registered against him, however, the High Court rejected the application, while noting that the objector (deceased had been murdered, in which Jogendra Singh was one of the individuals who had been named as an accused in the FIR. The final report submitted under section 173 Crpc identified Ujiyar Singh and Chandrabhan Singh as accused but Jogendra Singh and Suryabhan Singh have been reported to have played no part in the death of Vikas Singh since they were 40 kilometres far from Jabalpur. On filing a protest petition by the appellant and family members of the deceased, The investigating officer filed a supplementary challan where the Judicial First Class Magistrate observed that accusations against Suryabhan Singh and Jogendra Singh were not thoroughly considered. Jogendra Singh and Suryabhan Singh filed applications for anticipatory bail but were rejected by the trial Court. Later, they moved to the High court and thus allowed their application.
Mr Uday Gupta, learned Counsel on behalf of the appellant submitted that the Single Judge ignored the observations made by the Judicial Magistrate of First Class and the trial court indicating that the investigation by the investigator ignored essential circumstances related to the crime and further submitted that the Single Judge has ignored the seriousness and gravity of the crime as well as material aspects.
Mr S K Gangele, learned Counsel on behalf of Jogendra Singh contended that the report filed by the investigating officer shows that Jogendra Singh was not present at the spot where the incident occurred, but was in Jabalpur and urged that the FIR registered on behalf of Ujiyar Singh explains that Ujiyar Singh fired at the deceased since he and the appellant were threatening his life.
In the case in hand what needs to be determined is the correct formulation and application of the single judge's parameters for granting an advisory bail. By referring to the case Mahipal v. Rajesh Kumar (Mahipal) [(2020) 2 SCC 118], this court held “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”. The court also added that in cases where the relevant factors, which were not noted in the application for bail or were based on irrelevant considerations, were not taken into account in a case, the higher court could unquestionably revoke the order for the grant for bail.
It is evident from the facts that the High Court has not addressed the clear deficiencies in the course of the investigation which have been highlighted in the order of the Judicial First Class magistrate and the trial court. In determining whether the high court has applied the correct principles in allowing the applications for anticipatory bail the FIR and the statements under Sections 161 and 164 of the CrPC indicate a specific role to Jogendra Singh and Suryabhan Singh in the crime and the order granting anticipatory bail has ignored material aspects, including the nature and gravity of the offence, and the specific allegations against Jogendra Singh and Suryabhan Singh. Hence, the anticipatory bails are set aside.
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