Bhoopendra Singh vs The State Of Rajasthan on 29 October, 2021


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Supreme Court of India

Bhoopendra Singh vs The State Of Rajasthan on 29 October, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, B.V. Nagarathna

                                                                                          Reportable



                                       IN THE SUPREME COURT OF INDIA
                                      CRIMINAL APPELLATE JURISDICTION


                                         Criminal Appeal No. 1279 of 2021


          Bhoopendra Singh                                                      .... Appellant

                                                      Versus

          State of Rajasthan & Anr.                                            .... Respondents




                                                  JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 This appeal arises from a judgment dated 11 August 2021 of a Single Judge

at the Jaipur Bench of the High Court of Judicature for Rajasthan. By the judgment

impugned in the appeal, the High Court has allowed the fifth bail application of the

second respondent.

Signature Not Verified

Digitally signed by
Chetan Kumar
Date: 2021.10.29
14:56:01 IST
Reason:

1
2 FIR No. 732 of 2017 was registered at Police Station Mathuraghat for

offences punishable under Sections 147, 148, 149, 323, 341, 307, 302 and 336 of

the Indian Penal Code 1860 1. While allowing the application for bail, the Single

Judge has observed:

“6. Taking note of the fact that petitioner has remained in
custody for a period of three years and ten months, she is a
female, no overt act is assigned to her in the present case,
co-accused Vijay Pal against whom there was allegation has
been given benefit of bail, after rejection of fourth bail
application by this Court, there is variance in prosecution
story, earlier the presence of accused was s[h]own at the tea
shop and later on presence of accused according to witness
is shown at the place of occurrence and conclusion of trial will
take time, hence, I deem it proper to allow the fifth bail
application.”

3 The appellant is the son of the deceased-Daansingh- who was the Sarpanch

of the village. It has been alleged that there was a prior enmity between the accused

and the deceased, as a consequence of which the husband of the second

respondent together with certain other members of his family and sharp shooters

shot at Daansingh in September 2015. Daansingh survived the incident. FIR No.

466 of 2015 under Section 307 of the IPC was registered at Police Station Kumher.

The second respondent was arrested and charge-sheeted. The evidence of

Daansingh was to be recorded at the criminal trial. A fortnight prior to the recording

of his evidence, Daansingh was murdered on 11 September 2017.

1
“IPC”

2
4 On 12 September 2017, FIR No. 732 of 2017 was registered at Police Station

Mathuraghat by the brother of the appellant for offences punishable under Sections

147, 148, 149, 323, 341, 307, 302 and 336 of the IPC and Sections 3/25 and 4/25 of

the Arms Act 1959. The second respondent was arrested on 3 October 2017. After

investigation, the final report under Section 173 of the Code of Criminal Procedure

Code 1973 2 was submitted on 28 December 2017 in which the second respondent

has been named as an accused.

5 The second respondent was denied bail by the High Court on 6 April 2018, 5

September 2019 and 8 September 2020. In its order dated 5 September 2019, the

High Court noted:

“5. […] I.O. is present in person in the Court, who has
produced the calls details. It is informed by Investigating
Officer that two mobiles were recovered from the petitioner
and from I.M.E.I. number, it is revealed that different sims
were used in these mobiles and two sims that was used,
petitioner was in contact with Prahlad and her son Anek
Singh, who is also accused in this case. It is also informed
that day prior to the incident, petitioner and one Bhuria came
to the office of A.S.I and threatened to murder Dansingh. It is
also informed that petitioner informed the shooter about
movement of the deceased and she was constantly in touch
with Prahlad and her son-Anek Singh.”

6 By its order dated 8 September 2020, the High Court, while dismissing the

fourth bail application, also observed that the second respondent was not co-

operating in the investigation.



2
    “CrPC”

                                                     3
7       The High Court has allowed the fifth application for bail of the second

respondent observing that


(i)     The second respondent is a woman;

(ii)    She has been in custody for three years and ten months;

(iii) No overt act was assigned to her in the present case;

(iv) Co-accused Vijaypal has been granted bail;

(v) There is a variance in the story of the prosecution in respect of the location of

the second respondent; and

(vi) The conclusion of the trial is likely to take time.

8 Mr Namit Saxena, counsel appearing on behalf of the appellant submitted

that:

(i) The High Court is in error in proceeding on the basis that no overt act is

attributed to the second respondent since the charge-sheet, which has been

submitted after investigation, indicates that

a. The second respondent was using as many as four sim cards and was

in constant contact with Prahlad, the co-accused who was hired as a

sharp shooter, and her son Anek, who is also a co-accused; and

b. The second respondent was the custodian of the weapons used in the

crime;

4

(ii) The High Court had in its order dated 8 September 2020 specifically noted

that the second respondent was not co-operating in the investigation of the

case;

(iii) Four earlier bail applications have been rejected and there was no change in

the circumstances to warrant the grant of bail;

(iv) No parity could be claimed with the co-accused Vijaypal since he has not

been charge-sheeted;

(v) The investigation has revealed that the deceased was murdered with the aid

of a hired sharp-shooter shortly before he was to depose at the criminal trial in

the case arising out of FIR No. 466 of 2015 under Section 307 of the IPC;

(vi) The second respondent, as the prosecution alleges, was following the car of

the deceased and was providing instructions about his location to the sharp-

shooter; and

(vii) Even the brother of the appellant, Gopal Singh, was assaulted shortly before

his testimony was to be recorded.

9 On the other hand, Mr Vivek Sood, senior counsel appearing on behalf of the

second respondent submitted that:

(i) The incident took place outside the house of the deceased in which event, the

role attributed to the second respondent is rendered meaningless;

(ii) There has been a clear over-implication of members of the family in the FIR

since as many as six persons are alleged to have shot at the deceased

whereas only two bullets were recovered;

5

(iii) Two of the persons named in the FIR have not been charge-sheeted;

(iv) The second respondent is sixty years old and was released on bail after being

in custody for three years and ten months;

(v) 28 out of 58 witnesses have been examined and the trial is likely to take some

time; and

(vi) Anek Singh with whom the second respondent is alleged to have been in

contact is her son, while Prahlad, the alleged sharp-shooter, is a relative and

hence there would be nothing untoward in the mobile contact.

10 Ms Ritika Jhurani, counsel appearing on behalf of the State of Rajasthan

submitted that:

(i) The High Court has not considered the gravity of the crime while granting bail

to the second respondent;

(ii) No parity could have been claimed with co-accused Vijaypal who was granted

bail since he was not found to be involved in the incident and was not charge-

sheeted; and

(iii) On the other hand, the second respondent was found to be directly involved

in the conspiracy of a pre-meditated murder.

11 In Anil Kumar Yadav v. State (NCT of Delhi) 3, this Court has spelt out some

of the significant considerations which must be placed in the balance in deciding

whether to grant bail:

3

(2018) 12 SCC 129

6
“17. While granting bail, the relevant considerations are: (i)
nature of seriousness of the offence; (ii) character of the
evidence and circumstances which are 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.”

12 While granting bail in the present case, the High Court has observed that “no

overt act is assigned to her (the second respondent) in the present case”. These

observations are erroneous. The final report under Section 173 of the CrPC

indicates that the investigation has revealed that :

(i) The second respondent was using as many as four sim cards and was in

touch with one of the sharp-shooters who was hired to commit the crime; and

(ii) She was the custodian of the weapons which were stored at the rental

premises where she resided.

13 On the first aspect, the charge-sheet contains the following details in regard to

the use of the mobile numbers of the second respondent:

“From them analysis of these Call Details, following facts
have come to light:

1. Mobile Number: [xxxxxxxx00] (Omvati): – The Call details of
this Mobile Number were procured from date 01.08.2017
onwards until the date of occurrence of the case incident and
found that said number was active until the date 09.09.2017
after the aforesaid date of 01.08.2017 and its corresponding
IMEI Number was found to be [xxxxxxxxxxxx810]. It has also
come to light that after said date 09.09.2017, in said mobile
phone of IMEI: [xxxxxxxxxxxx810], some other SIM was

7
found to be active or not to find out the same, the Call Details
corresponding to said IMEI No. [xxxxxxxxxxxx810] was
obtained for Mobile Number [xxxxxxxx36] in the course of
which it came to be known that said Mobile Number was
active until the date of incident 11.09.2017.

2. Mobile Number [xxxxxxxx36] (Omvati): – Mobile Number
[xxxxxxxx36] related SIM Card was found to have been
issued in the name of Guddi wife of Shri Lalsingh, R/o;
Sabaura, District: Bharatpur, Omvati has used the Mobile
Phone of IMEI No: [xxxxxxxxxxxx810] in the past for making
and receiving calls to and from Mobile No: [xxxxxxxx00] and
then from the same mobile later also operated Mobile
Number [xxxxxxxx36] which clearly indicates that said Mobile
has been used by Omvati only and not Guddi. When the call
details of Mobile Number [xxxxxxxx36] was analysed it was
found that the mobile location on date 11.09.2017 as Kumher,
Nagla Baghera Post Bauraayi, Anand Nagar, Bharatpur,
Ranjit Nagar, Bharatpur, near Railway Station: Bharatpur and
found that from said Number, she has made several calls and
conversed with other Mobile Number [xxxxxxxx31].”

14 The mobile number with which the cell phone of the second respondent was

in contact with is of the co-accused Prahlad, who is alleged to be a hired sharp-

shooter. Apart from the above two mobile numbers, there were two other mobile

numbers which were in the use by the second respondent, as indicated in the

following extracts from the charge-sheet:

“7. Mobile Number: [xxxxxxxx57] (Omvati):- In the
course of investigation, in this case matter, it has come to
light that Mobile No: [xxxxxxxx57] has been used in the name
of one Pradeep son of Udaysingh resident of Badeeka, Tehsil
Kathoomar, District: Alwar and its IMEI [xxxxxxxxxxxx960]
was under consistent usage too. On the date of occurrence of
the case incident i. e., 11.09.2017, the location of this number
was traced as Ashok Nagar, Near: Subhash Nagar,
Bharatpur, Nagal Ganga, Tehsil: Kumher, Kumher, Rarah.
Said IMEI based CDR was obtained fro[m] which it was found
that [xxxxxxxx89] was an active number and was found to be
under the usage of Omvati.

8

8. Mobile Number [xxxxxxxx89] (Omvati):- this Mobile
Number [xxxxxxxx89] was found to have been issued in the
name of Omvati – wife of Ratansingh – resident of Sabaura,
Police Station: Kumher, Bharatpur and on analysing the CDR
of said number it was found to have been used in an
instruments or instrument of IMEI Numbers
[xxxxxxxxxxxx970] and [xxxxxxxxxxxx960]. When the CDR of
IMEI No. [xxxxxxxxxxxx960] was procured, it was found that
Mobile Number [xxxxxxxx57] related SIM card has been used
in it. In this way, it has become apparent that said Mobile No:
[xxxxxxxx57] was used by Omvati wife of Ratansingh,
resident of Sabaura, Kumher, Bharatpur and the aforesaid
IMEIs [xxxxxxxxxxxx970] & [xxxxxxxxxxxx960] were used
from a single Mobile Handset by her. On 11.09.2017 – i. e.
the date of occurrence of this case incident, its location was
traced as Ashok Vihar, Subhash Nagar, Bharatpur, Kumher,
Ranjeet Nagar, Bharatpur, Near Railway Station Bharatpur
etc.”

15 The charge-sheet contains an analysis of the call data records. Apart from the

material drawn from the call data records, it has been found during the course of the

investigation that in order to purchase the fire arms for the crime, Ratan Singh, the

husband of the second respondent, had paid an advance of Rs. 40,000 to Prahlad.

Prahlad had brought three katas and ten cartridges. The weapons were kept in a

room by Anek Singh at Bharatpur in which the second respondent was residing on a

rental basis. Moreover, there is a specific allegation that the second respondent has

actively aided the commission of the crime by furnishing information about the

movements of the deceased (Daansingh) to the killers. There has been an evident

error on the part of the High Court in surmising that no specific or overt act is

attributed to the second respondent. As regards the co-accused Vijaypal, it has been

submitted that during the course of the investigation he was not found to be present

at the scene of the offence and was not charge-sheeted.

9
16 In deciding as to whether the fifth bail application of the second respondent

should be allowed, the High Court has failed to consider the seriousness and gravity

of the crime and the specific role which is attributed to the second respondent. The

deceased was due to testify in the trial in the prior case under Section 307 of the

IPC and the murder was committed barely a fortnight prior to the date on which he

was to depose. The High Court had rejected four previous bail applications. There

was no change in circumstances. In this backdrop, the High Court having failed to

notice material circumstances bearing upon the grant of bail to the second

respondent and, as noted above, having proceeded on a palpable erroneous basis,

a case for the setting aside of the order of the High Court has been duly established.

17 In Mahipal v. Rajesh Kumar 4, one of us (Justice DY Chandrachud), speaking

for a two-judge Bench of this Court, after adverting to the precedents on the subject,

enunciated the considerations which must weigh in the determination of whether bail

should be granted:

“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 [Prasanta Kumar Sarkar
v. Ashis Chatterjee,
(2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] . 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 11-1-2010 (Cal)] of the High Court, D.K. Jain, J.,

4
(2020) 2 SCC 118

10
speaking for a two-Judge Bench of this Court, held: (SCC pp.

499-500, paras 9-10)
“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. 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 non-application of
mind, rendering it to be illegal.”

[…]

15. The decision of this Court in Prasanta [Prasanta Kumar
Sarkar v. Ashis Chatterjee
, (2010) 14 SCC 496 : (2011) 3
SCC (Cri) 765] has been consistently followed by this Court
in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv
Raj Singh, (2012) 9 SCC 446 : (2012) 3 SCC (Cri) 1172]
, Ranjit Singh v. State of M.P. [Ranjit Singh v. State of M.P.,
(2013) 16 SCC 797 : (2014) 6 SCC (Cri) 405] , Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014)
16 SCC 508 : (2015) 3 SCC (Cri) 527] , Virupakshappa
Gouda v. State of Karnataka [Virupakshappa Gouda v. State
of Karnataka, (2017) 5 SCC 406 : (2017) 2 SCC (Cri) 542]
and State of Orissa v. Mahimananda Mishra [State of

11
Orissa
v. Mahimananda Mishra, (2018) 10 SCC 516 : (2019)
1 SCC (Cri) 325].”

18 The Court noted that the considerations which must weigh in the exercise of

the power of the appellate court to determine whether bail has been granted for valid

reasons stand on a distinct footing from an application for cancellation of bail. The

Court observed:

“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.”

(See also in this context the judgment in Ramesh Bhavan Rathod v. Vishanbhai

Hirabhai Makwana Koli 5) and Harjit Singh v. Inderpreet Singh alias Inder 6)

19 On the touchstone of the above decisions and for the reasons we have

indicated above, the impugned order granting bail is unsustainable. The High Court

has failed to notice relevant circumstances bearing on the seriousness and gravity of

the crime and the role attributed to the second respondent. The High Court has

proceeded on the erroneous basis that no overt act has been assigned to the

second respondent. There was no change in circumstances warranting the grant of

bail.

5
(2021) 6 SCC 230
6
2021 SCC OnLine SC 633

12
20 For the above reasons we allow the appeal and set aside the impugned

judgment and order of the Single Judge at the Jaipur Bench of the High Court of

Judicature for Rajasthan dated 11 August 2021 in SB Criminal Miscellaneous Fifth

Bail Application No. 11627 of 2021. The application for bail filed by the second

respondent shall consequently stand rejected. The second respondent shall

surrender on or before 7 November 2021.

21 The observations made in this judgment are only for the purpose of

considering the application for bail and shall have no bearing on the merits of the

case or the pending trial.

22 Pending application(s), if any, stand disposed of.

…..….…………………………………………………….J.
[Dr Dhananjaya Y Chandrachud]

…..….…………………………………………………….J.
[B V Nagarathna]

New Delhi;

October 29, 2021.

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